REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.         1481                OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 1513 OF 2011)

NEVADA PROPERTIES PRIVATE LIMITED THROUGH ITS DIRECTORS …..           APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA AND ANOTHER …..       RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 1122 OF 2011

CRIMINAL APPEAL NOS.       1482-1485                OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NOS.891-894 OF 2011)

CRIMINAL APPEAL NO.         1486                OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 4360 OF 2011)

A N D

CRIMINAL APPEAL NO.       1487                        OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 3958 OF 2013)

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J U D G M E N T

SANJIV KHANNA, J.

Leave granted in Special Leave Petitions.

2. A Division Bench of this Court (Jagdish Singh Khehar and Arun

Mishra, JJ.) vide order dated November 18, 2014, noticing that the

issues that  arise have far  reaching and serious consequences,

had referred the aforesaid appeals to be heard by a Bench of at

least  three Judges.   After  obtaining appropriate  directions from

Hon’ble the Chief Justice, these appeals have been listed before

the present Bench.

3. For the sake of convenience, we have treated the Criminal Appeal

arising out of Special Leave Petition (Criminal) No. 1513 of 2011,

filed  by  Nevada  Properties  Pvt.  Ltd.,  as  the  lead  case.   This

appeal arises from judgment of the High Court of Judicature at

Bombay dated November 29, 2010 wherein the majority judgment

has held that the expression ‘any property’ used in sub-section (1)

of  Section  102  of  the  Code  of  Criminal  Procedure,  1973

(hereinafter referred to as the ‘Code’) does not include immovable

property and, consequently, a police officer investigating a criminal

case cannot take custody of and seize any immovable property Criminal Appeal arising out of

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which may be found under circumstances which create suspicion

of  the  commission  of  any  offence.   According  to  the  majority

judgment, earlier decision of the Division Bench of the same High

Court in Kishore Shankar Signapurkar v. State of Maharashtra

and Others1 lays down the correct  ratio and the contrary view

expressed in  M/s. Bombay Science and Research Education

Institute v. The State of Maharashtra and Others2 does not lay

down the correct  law.   The minority  view holds that  the police

officer  has  power  to  seize  any  property,  whether  movable  or

immovable, under Section 102 of the Code and the decision of the

Division  Bench  in  M/s.  Bombay  Science  and  Research

Education Institute  (supra) lays down the correct  law and the

ratio in Kishore Shankar Signapurkar (supra) is not good law.

4. In order to decide the present controversy which is primarily legal,

we would begin by reproducing Section 102 of the Code, which

reads as under:

“S.102  Power  of  police  officer  to  seize  certain property.

(1)  Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

1 1997 Vol.IV L J 793 2 2008 All M.R.(Crl.) 2133 Criminal Appeal arising out of

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(2)  Such police officer, if  subordinate to the office in charge  of  a  police  station,  shall  forthwith  report  the seizure to that officer.

(3)  Every police officer  acting under sub-section (1) shall  forthwith  report  the  seizure  to  the  Magistrate having  jurisdiction  and  where  the  property  seized  is such that it cannot be conveniently transported to the Court,  or  where  there  is  difficulty  in  securing  proper accommodation  for  the  custody  of  such  property,  or where the continued retention of the property in police custody  may  not  be  considered  necessary  for  the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property  before the  Court  as  and when required and to give effect to the further orders of the Court as to the disposal of the same.

Provided  that  where  the  property  seized  under  sub- section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police  and  the  provisions  of  Sections  457  and  458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.”

5. Section 102 of the Code is part of a fasciculus of provisions under

Chapter VII – ‘Process to Compel the Production of Things’.  Part

A of  the said Chapter deals with Summons to produce; Part  B

deals with Search-warrants; Part C deals with General provisions

relating to searches; and Part D, of which Section 102 is the first

Section,  falls  under  the  part  described  as  Miscellaneous.  The

marginal note of Section 102 states – “Power of police officer to

seize  certain  property”.  Sub-section  (3)  of  Section  102  was

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inserted by Act No. 45 of 1978.  It was later amended by section

13(a) of  the Cr.P.C. Amendment Act,  2005 (Act 25 of  2005) by

adding  the  expression  “or  where  there  is  difficulty  in  securing

proper accommodation for the custody of such property, or where

the continued retention of the property in police custody may not

be considered necessary for the purpose of investigation.” Proviso

to sub-section (3) was also added by the Amendment Act, 2005.

Sub-section  (3)  to  Section  102  is  intended  to  give  greater

discretion to the police officer for releasing seized property, where

there  is  a  difficulty  in  securing  proper  accommodation  for  the

custody of the property or where the continued retention of the

property  in  police  custody  is  not  considered  necessary  for  the

purpose of investigation.  Proviso states that if the seized property

is of perishable nature and the value of such property is less than

five hundred rupees and if the person entitled to the possession of

such property is unknown or absent, the police is empowered to

sell such property by auction under orders of the Superintendent

of Police.  

6. The  minority  judgment  and  the  contention  of  the  appellant  is

substantially predicated on the words ‘any property’ in sub-section

(1) of Section 102.  Reference was made to the decision of this

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Court  in  State of Maharashtra  v.  Tapas D. Neogy3.   To avoid

prolixity,  we are not  referring to the contentions raised by both

sides as the same would be referred to and examined during the

course of our reasoning.  At the outset, we must begin by referring

to the decision in  Tapas D. Neogy  (supra), a case arising from

three First Information Reports under Sections 120-B, 467, 468,

471 and 420 of the Indian Penal Code, 1860 (hereinafter referred

to as the ‘IPC’) and Section 13(2) read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988.  The question was whether a

bank account of an accused or any relation of the accused was

‘property’ within the meaning of Section 102 of the Code and if so,

whether the Investigating Officer has the power to seize the bank

account or issue a prohibitory order restraining operation of the

bank account.  Reference was made to several judgments of the

High Courts, some of which would be discussed later, to hold as

under:

“12. Having considered the divergent views taken by different  High  Courts  with  regard  to  the  power  of seizure  under  Section  102  of  the  Code  of  Criminal Procedure, and whether the bank account can be held to be “property” within the meaning of the said Section 102(1),  we  see  no  justification  to  give  any  narrow interpretation  to  the  provisions  of  the  Criminal Procedure  Code.  It  is  well  known  that  corruption  in public  offices  has  become  so  rampant  that  it  has become difficult to cope up with the same. Then again the  time  consumed  by  the  courts  in  concluding  the

3 (1999) 7 SCC 685 Criminal Appeal arising out of

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trials is another factor which should be borne in mind in interpreting  the  provisions  of  Section  102  of  the Criminal  Procedure  Code  and  the  underlying  object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held  in  the  trial  to  be  the  outcome  of  the  illegal gratification, could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relations is “property”  within  the  meaning  of  Section  102  of  the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the  commission  of  the  offence  for  which  the  police officer  is  investigating  into.  The  contrary  view expressed by  the  Karnataka,  Gauhati  and Allahabad High Courts, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under sub- section  (2)  of  Section  13,  the  legislatures  have provided that  the  courts  in  fixing  the  amount  of  fine shall take into consideration the amount or the value of the property which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub-section (1) of Section  13,  the  pecuniary  resources  or  property  for which  the  accused  person  is  unable  to  account satisfactorily. The interpretation given by us in respect of  the  power  of  seizure  under  Section  102  of  the Criminal  Procedure  Code  is  in  accordance  with  the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above. In the aforesaid premises, we have no hesitation to come to  the  conclusion  that  the  High  Court  of  Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer, prohibiting the account  of  the  accused  from  being  operated  upon. Though we have laid down the law, but so far as the present  case  is  concerned,  the  order  impugned has already been given effect to and the accused has been

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operating his account, and so, we do not interfere with the same.”

7. Money, as per clause (7) of Section 2 of the Sales of Goods Act,

1930, is neither goods nor movable property, albeit Section 22 of

the IPC defines the term ‘movable property’  to include corporeal

property of every description, except land and things attached to

the earth or permanently fastened to anything which is attached to

the  earth.  The  expression  ‘movable  property’  has  not  been

specifically defined in the Code.  In terms of Section 2(y) of the

Code, words and meanings defined in the IPC would equally be

applicable to the Code.  Money, therefore, would be property for

the purposes of the Code.  Money is not an immovable property.

8. Decision of this Court in Tapas D. Neogy (supra) was in respect

of  the  bank  accounts  and  it  did  not  examine  and  answer  the

question  whether  the  expression  ‘any  property’  would  include

immovable  property.  This  question  was,  however,  noticed  in

paragraph  6  in  Tapas  D.  Neogy  (supra),  which  had  made

reference to a decision of the Delhi High Court in  Ms.  Swaran

Sabharwal v. Commissioner of Police4 in which it was held that

Section 102 requires that the seized property by itself should lead

to the suspicion that some offence has been committed.  In other

4 1988 CriLJ 241 (Del) (DB) Criminal Appeal arising out of

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words,  the discovery  of  the offence should  be a  sequel  to  the

discovery  of  that  property  and  not  the  other  way  around.

Reference in this regard can also be made to Jagdish Chander

and  Others  v.  State  and  Others5, wherein the  petitioner  had

challenged the seizure action of the police on the ground that the

word ‘seizure’ appearing in Section 102 of the Code would imply

actual  taking  of  possession  and,  therefore,  would  not  include

immovable property.  This contention was not answered and left

open as the Delhi  High Court  came to the conclusion that  the

seizure order therein under Section 102 of the Code was not in

accordance with the statutory requirement as the property should

be discovered under circumstances which create a suspicion of

the commission of  an offence,  that  is,  the police officer  should

come across certain property in circumstances which create in his

mind a suspicion that  an offence has been committed.  Section

102, it was held, would not be attracted where the property has

not been traced or discovered which leads to a suspicion of an

offence  having  been  committed.  Discovery  of  property  should

precede  the  detection  of  crime.  This  ratio  was  subsequently

followed  in  P.K.  Parmar  and  Others  v.  Union  of  India  and

Another6 in which the Delhi High Court had reiterated that unless 5 40 (199) DLT 233

6 1992 CriLJ 2499 (Del) Criminal Appeal arising out of

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discovery of the property leads to a suspicion of an offence having

been committed, Section 102 of the Code cannot be invoked for

seizing  such  properties.  The  Delhi  High  Court  examined  the

question;  whether  the  discovery  of  the  bank  accounts  had

preceded the suspicion of  the offences having been committed

and held that there were good reasons, in view of the attending

circumstances,  which  had  led  Central  Bureau  of  Investigation

(hereinafter referred to as the ‘CBI’) to be suspicious of an offence

having been committed in relation to such accounts. The accounts

were found either in the name of non-existent persons or in bogus

names and all such accounts were allegedly being maintained by

the principal accused. There was sufficient cause for the CBI to

set the criminal law into motion. In this case, the allegation was

that subsidies were obtained illegally and without entitlement from

the  Government  of  India,  and  the  amounts  so  received  were

deposited in the bank accounts that  had prima facie linked the

accused with various offences with which they were charged. The

cause of  action,  therefore,  for  seizing the bank accounts arose

when a suspicion was created relating to the multiple and spurious

handling of bank accounts.

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9. Tapas D. Neogy  (supra) had also referred to the judgment of a

Single Judge of the Madras High Court in Bharat Overseas Bank

v. Minu Publication7, which had made reference to Sections 451,

452,  453,  456  and  457  of  the  Code  to  observe  that  these

provisions seek to reimburse or compensate victims of crime and

bring  about  restoration  of  the  property  or  its  restitution.  The

provision  empowering  seizure  was  necessary  to  preserve  the

property for the purpose of enabling the Criminal Court to pass

suitable orders under the aforesaid provisions at the conclusion of

the trial.   The judgment also refers to restoration of immovable

property under certain circumstances dealt with under Section 456

of the Code.

10. The reason why we have referred to the two decisions in  P.K.

Parmar  (supra) and  Bharat Overseas Bank  (supra) is to notice

the wide range of  issues and contentions with reference to the

term ‘property’ that could arise for consideration while interpreting

the power of the police officer to effect seizure under Section 102

of the Code,  albeit  this Court did not deal with and express an

opinion on several  issues in  Tapas D.  Neogy (supra)  and the

judgment was confined and limited to the question; whether bank

accounts would fall within the category of ‘any property’. Holding 7 1988 MLW (Cri) 106 Criminal Appeal arising out of

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that  the  bank  accounts  would  fall  under  the  expression  ‘any

property’ under  Section 102 of  the Code,  it  was observed that

there was no justification or reason to give a narrow interpretation

to the words to exclude bank accounts, elucidating that corruption

in public offices has become rampant and this aspect has to be

borne in mind while interpreting the provisions of Section 102 of

the Code and the underlying object engrafted in the provision.

11. It follows from the aforesaid discussion that the decision in Tapas

D. Neogy  (supra) did not go into and decide the issue; whether

immovable property would fall under the expression ‘any property’

under  Section  102  of  the  Code.  We  say  so  by  applying  the

inversion test as referred to in  State of Gujarat and Others  v.

Utility  Users’ Welfare Association and Others8,  which states

that the Court must first carefully frame the supposed proposition

of  law  and  then  insert  in  the  proposition  a  word  reversing  its

meaning  to  get  the  answer  whether  or  not  a  decision  is  a

precedent for that proposition.  If the answer is in the affirmative,

the case is not a precedent for that proposition.  If the answer is in

the negative, the case is a precedent for the original proposition

and possibly for other propositions also.  This is one of the tests

applied  to  decide  what  can  be  regarded  and  treated  as  ratio 8 (2018) 6 SCC 21 Criminal Appeal arising out of

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decidendi  of  a decision.   Reference in  this  regard can also be

made  to  the  decisions  of  this  Court  in  U.P.  State  Electricity

Board v. Pooran Chandra Pandey and Others9, Commissioner

of Income Tax  v.  Sun Engineering Works (P) Ltd.10 and other

cases which hold that a decision is only an authority for what it

actually decides.  What is of the essence in a decision is its ratio.

Not every observation found therein nor what logically flows from

those observations is the  ratio decidendi.  Judgment in question

has  to  be  read  as  a  whole  and  the  observations  have  to  be

considered in light of the instances which were before the Court.

This is  the way to ascertain the true principles laid down by a

decision. Ratio decidendi cannot be decided by picking out words

or  sentences  averse  to  the  context  under  question  from  the

judgment. It is, therefore, clear to us that Tapas D. Neogy (supra)

did not decide the issue in question; whether or not an immovable

property will fall within the expression ‘any property’ in Section 102

of the Code.  We will have to, therefore, examine the issue and

answer the same.

12. This  Court  in  R.K.  Dalmia  etc.  v.  Delhi  Administration11 had

interpreted the word ‘property’ in Section 405 and other sections 9 (2007) 11 SCC 92 10 (1992) 4 SCC 363

11 AIR 1962 SC 1821 Criminal Appeal arising out of

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of the IPC to opine that there was no good reason to restrict the

meaning of the word ‘property’ to movable property when the word

was  used  without  any  qualification  in  Section  405  or  in  other

sections of the IPC.  At the same time, this Court had cautioned

that whether an offence defined in a particular section of the IPC

can be committed in respect of any particular kind of property, will

depend not on the interpretation of the word ‘property’ but on the

fact that whether that particular kind of property can be subject to

acts covered by that section.  In that sense, it can be said that the

word  ‘property’  in  a  particular  section  covers  only  that  type  of

property  in  respect  of  which  the  offence  contemplated  in  that

section can be committed.  This, we would observe, is the central

and  core  principle  which  would  have  to  be  applied  when  we

interpret the expression ‘any property’ used in Section 102 of the

Code, which as noticed above and elucidated below is a power

conferred  upon  the  police  officer  and  relates  to  the  stage  of

investigation  and  collection  of  evidence  to  be  produced  in  the

Court during trial.

13. Before we proceed further, we would like to refer to the Criminal

Law Amendment Ordinance, 1944 (No. XXXVIII  of 1944) which

was promulgated in exercise of powers conferred under Section

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72 of the Ninth Schedule of the Government of India Act, 1935 to

prevent disposal or concealment of property procured by means of

offences  specified  in  its  Schedule,  which  include  offences

punishable under Sections 406, 408, 409, 411 and 414 of the IPC

in respect of Government property, property of local authority or a

Corporation established by or under a Central, Provincial or State

Act,  etc.,  and  an  offence  punishable  under  the  Prevention  of

Corruption  Act,  1988,  an  insertion  made  by  the  Prevention  of

Corruption Act, 1988. It sets out the procedure when the Central/

State  Government  has  a  reason  to  believe  that  a  person  has

committed any scheduled offence, whether or not the Court has

taken cognisance of the said offence, by attachment of money or

other property which the Central/State Government believes that

the person has procured by means of the scheduled offence, and

if such money or property cannot for any reason be attached, any

other property of the said person of value as nearly as may be

equivalent  to  that  of  the  aforesaid  money  or  property.  This

enactment mandates application of provisions of Order XXVII of

the Code of Civil  Procedure, 1908 with a provision for filing an

application before the District Judge who is entitled to pass an ad

interim attachment order after following the prescribed procedure

including  examination  and  investigation  of  objections  to Criminal Appeal arising out of

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attachment of the property. The District Judge can pass an order

either  making  the  interim  attachment  absolute  or  varying  it  by

releasing the property or portion thereof or withdrawing the order

on satisfaction of certain conditions. Other sections contained in

the  Ordinance  provide  for  attachment  of  property  of  mala  fide

transferees, execution of orders of attachment, security in lieu of

attachment,  administration  of  attached  property,  duration  of

attachment, appeals, power of Criminal Court to evaluate property

procured by scheduled offences and disposal of attached property

upon termination of criminal  proceedings. Section 14 bars legal

proceedings in other Courts in respect of the property attached

under the Ordinance. The Ordinance is a permanent Ordinance

which  was  promulgated  during  the  Second  World  War.  It  was

adopted  by  the  Presidential  Adaptation  of  Laws  Order,  1950

issued under the powers conferred by clause (2) of Article 372 of

the Constitution, thus, making it effective in the territory of India

and, therefore, continues to remain in force.

14. Similarly, there are provisions in the form of Sections 145, 146,

165  amongst  others  in  the  Code  which  specifically  relate  to

immovable properties. Chapter VIIA – ‘Reciprocal Arrangements

for Assistance in Certain Matters and Procedure for Attachment

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and  Forfeiture  of  Property’  specifically  includes  immovable

properties under the expression ‘property’ for the purpose of the

said Chapter unless the context otherwise requires.  Similarly, we

have specific provisions relating to and dealing with immovable

property under the Narcotics, Drugs and Psychotropic Substances

Act, 1985.

15. We would now refer to Chapter XXXIV of the Code, which has the

heading ‘Disposal  of  Property’ and consists  of  Sections 451 to

459.  We would like to reproduce Sections 451, 452, 453, 454,

456 and 457 of the Code, which read as under:

“451.  Order for custody and disposal of property pending trial in certain cases.— When any property is  produced  before  any  Criminal  Court  during  any inquiry or trial,  the Court  may make such order as it thinks  fit  for  the  proper  custody  of  such  property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation.–  For  the  purposes  of  this  section, "property" includes –

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

452.Order for disposal of property at conclusion of trial.-

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(1)  When an inquiry  or  trial  in any Criminal  Court  is concluded, the Court may make such order as it thinks fit  for  the  disposal,  by  destruction,  confiscation  or delivery  to  any  person  claiming  to  be  entitled  to possession  thereof  or  otherwise,  of  any  property  or document  produced  before  it  or  in  its  custody,  or regarding  which  any  offence  appears  to  have  been committed, or which has been used for the commission of any offence.

(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled  to  the  possession  thereof,  without  any condition or on condition that he executes a bond, with or  without  sureties,  to  the  satisfaction  of  the  Court, engaging to restore such property to the Court if  the order  made under  sub-section (1)  is  modified  or  set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered  to  the  Chief  Judicial  Magistrate,  who  shall thereupon  deal  with  it  in  the  manner  provided  in sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to  speedy  and  natural  decay,  or  where  a  bond  has been  executed  in  pursuance  of  sub-section  (2),  an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been  converted  or  exchanged,  and anything  acquired  by  such  conversion  or  exchange, whether immediately or otherwise.

453.Payment  to  innocent  purchaser  of  money found on accused.-

When any person is  convicted of  any offence which includes,  or  amounts  to,  theft  or  receiving  stolen

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property, and it is proved that any other person bought the stolen property from him without knowing or having reason to believe that the same was stolen, and that any money has on his  arrest  been taken out  of  the possession of the convicted person, the Court may, on the application of such purchaser and on the restitution of  the  stolen  property  to  the  person  entitled  to  the possession  thereof,  order  that  out  of  such  money  a sum not exceeding the price paid by such purchaser be delivered to him.

454.Appeal  against  orders  under  section  452  or section 453.-

(1) Any person aggrieved by an order made by a Court under section 452 or section 453, may appeal against it to  the  Court  to  which  appeals  ordinarily  lie  from convictions by the former Court.

(2) On such appeal, the Appellate Court may direct the order to be stayed pending disposal of the appeal, or may  modify,  alter  or  annul  the  order  and  make any further orders that may be just.

(3) The powers referred to in sub-section (2) may also be  exercised  by  a  Court  of  appeal,  confirmation  or revision while dealing with the case in which the order referred to in sub-section (1) was made.

xx xx xx

456.Power  to  restore  possession  of  immovable property.-

(1) When a person is convicted of an offence attended by  criminal  force  or  show  of  force  or  by  criminal intimidation, and it appears to the Court that, by such force or show of force or intimidation, any person has been  dispossessed  of  any  immovable  property,  the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if  necessary,  any  other  person  who  may  be  in possession of the property:

Provided that no such order shall be made by the Court more than one month after the date of the conviction.

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(2) Where the Court trying the offence has not made an order  under  sub-section  (1),  the  Court  of  appeal, confirmation or revision may, if it thinks fit, make such order  while  disposing  of  the  appeal,  reference  or revision, as the case may be.

(3) Where an order has been made under sub-section (1), the provisions of section 454 shall apply in relation thereto  as  they  apply  in  relation  to  an  order  under section 453.

(4) No order made under this section shall  prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit.

457.Procedure by police upon seizure of property.-

(1)  Whenever  the  seizure  of  property  by  any  police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a  Criminal  Court  during  an  inquiry  or  trial,  the Magistrate  may  make  such  order  as  he  thinks  fit respecting the disposal of such property or the delivery of  such  property  to  the  person  entitled  to  the possession  thereof,  or  if  such  person  cannot  be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions  (if  any)  as  the  Magistrate  thinks  fit  and  if such person is unknown, the Magistrate may detain it and  shall,  in  such  case,  issue  a  proclamation specifying the articles of which such property consists, and  requiring  any  person  who  may  have  a  claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.”

16. Section 451 empowers the Criminal  Court  to  pass an order  of

proper custody of ‘any property’ pending trial or inquiry. The Court

can also direct disposal in certain circumstances. Explanation to Criminal Appeal arising out of

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Section  451  states  that  for  the  purpose  of  the  said  Section,

‘property’  includes  property  of  any  kind  or  document  which  is

produced  before  the  Court  or  which  is  in  its  custody  or  any

property  regarding  which  an  offence  appears  to  have  been

committed  or  which  appears  to  have  been  used  for  the

commission of any offence. Section 451 applies during or pending

trial, or inquiry (the expression ‘inquiry’ is defined in Section 2(g) of

the  Code).  There  are  judgments  that  hold  that  the  expression

‘property’  for  the  purpose  of  Section  451  includes  immovable

property.  In fact, preponderance of judicial decisions takes this

view, though there is no direct judgment of this Court.  Same is the

position with regard to Section 452, which in sub-section (5) states

that  the  term ‘property’ includes,  in  case  of  property  regarding

which an offence appears to have been committed, not only such

property as was originally in possession or under control of any

party, but also any property into which the same may have been

converted  or  exchanged,  and  anything  acquired  by  such

conversion  or  exchange,  whether  immediately  or  otherwise.

Section 452 states that when an inquiry or trial in a Criminal Court

concludes, the Court may make an order as it  thinks fit  for the

disposal,  by  destruction,  confiscation or  delivery  to  any  person

claiming himself to be entitled to possession thereof or otherwise, Criminal Appeal arising out of

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of any property or document produced before it or in its custody,

or regarding which an offence appears to have been committed or

which  has  been  used  for  the  commission  of  any  offence.  The

context  is  wide,  albeit  the  words,  “may make such  order  as  it

thinks fit”  in  Section 452 vests the Court  with the discretion to

dispose  of  the  property  in  any  of  the  three  modes  specified,

namely, destruction, confiscation or delivery to the person entitled

to be in possession thereof or  otherwise (see  N. Madhavan v.

State of Kerala12). However, an order under Section 452 is not an

order  determining  title  or  ownership  but  that  of  the  right  to

possession, and therefore where serious claims to ownership are

put  forward,  it  would be best  if  the Criminal  Courts  directs the

parties to establish their claim before the Civil Court. The Criminal

Court can, however, pass appropriate order of interim nature as it

may  be  appropriate.  What  is  important  and  relevant  for  our

discussion is that the Sections 451 and 452 are broad and wide

conferring specific and clear powers upon the Criminal Court, and

the language indicates that they could equally apply to immovable

property. These Sections do not make reference to Section 102 of

the Code relating to the seizure of property by the police officer.

This is equally true of Section 456 which specifically empowers

12 (1979) 4 SCC 1 Criminal Appeal arising out of

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the Criminal Court to restore possession of immovable property

when a person is convicted of  an offence attended by criminal

force or show of force or by criminal intimidation and it appears to

the Court that by such force or show of force or intimidation any

person has been dispossessed of the property.  This order can be

made  without  prejudice  to  the  right  or  interest  to  or  in  such

immovable property which any person may be able to establish in

a civil suit.  Section 457 applies when a property has been seized

by any police officer  and is reported to a Magistrate under the

provisions of the Code and such property is not produced before a

Criminal Court during the course of inquiry or trial. The expression

‘not produced before a Criminal Court’ used in Section 457 of the

Code is  significant.  Thus,  this  provision applies to the property

seized under Section 102 of the Code, but not produced during

the trial or inquiry. In common parlance, the word ‘produced’ is an

expression  used  to  signify  actual  or  physical  production  which

would apply to movable property. Immovable property cannot be

‘produced’ in a Court.  

17. We have referred to the said provisions under Chapter XXXIV –

‘Disposal  of  Property’,  as  this  would  be  of  significance  and,

addresses the argument and concern expressed by the appellant

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–  Nevada  Properties  Pvt.  Ltd.  and  some  of  the  State

Governments.  These provisions, specifically enable the Court to

pass  orders  relating  to  the  properties,  both  movable  and

immovable.   We have referred to Section 451,  which does not

specifically refer to any seizure order under Section 102 of  the

Code but vide Explanation includes such property regarding which

an offence appears to have been committed or which appears to

have  been  used  for  the  commission  of  any  offence.  Similarly,

Section 452 refers to property regarding which an offence appears

to have been committed as has been originally in possession or

under control of any party and also such property into or for which

the same may have been converted or exchanged.  Again Section

452  per se, does not make any reference to Section 102 of the

Code.  This is also true for Section 456 of the Code which relates

to  restoration  of  possession  of  immovable  property  in  certain

circumstances. These provisions, therefore, do not directly define

the contours and scope of Section 102 of the Code.  On the other

hand, it would show that Section 102 is not the primary or the core

provision which would make the provisions of Section 451, 452 or

456  of  the  Code  applicable.  The  parameters  for  application  of

these  sections  are  those  as  are  enumerated  in  the  specific

provisions.  Sections  451  and  452  specifically  define  the Criminal Appeal arising out of

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expression ‘property’ for the purpose of an order of custody and

disposal by the Court. Section 456 applies to the category or type

of offences concerning immovable property regardless of whether

the immovable property is in custody of  the Court or  has been

attached.  Power  of  the  Criminal  Court  under  these  Sections,

except  Section  457  of  the  Code,  is  not  restricted  to  property

seized  by  the  police  officer  under  Section  102  of  the  Code.

Section 457, as noticed, applies to properties which have been

seized  by  the  police  officer  under  the  Code  but  not  produced

during inquiry or trial.

18. Having held and elucidated on the power of the Criminal Court, we

find  good ground  and reason to  hold  that  the  expression  ‘any

property’ appearing in Section 102 of the Code would not include

immovable property.  We would elucidate and explain.

19. The first part of sub-section (1) of Section 102 of the Code relates

to the property which may be alleged or suspected to have been

stolen.  Immovable property certainly cannot be stolen and cannot

fall in this part.  The second part relates to the property which may

be found by a  police  officer  under  circumstances which create

suspicion of  the commission of  any offence.  We have already

referred to the judgments of the Delhi High Court in the case of Criminal Appeal arising out of

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P.K.  Parmar  (supra),  Ms.  Swaran  Sabharwal  (supra),  and

Jagdish  Chander  (supra),  which  have  elucidated  and  in  a

restricted and narrow manner defined the requirement for invoking

the second part. However, we have come across a decision of this

Court in Teesta Atul Setalvad v. State of Gujarat13, on an appeal

from the judgment of the Gujarat High Court and had dealt with a

situation when an act of freezing the accounts was a sequel to the

crime as the crime was detected earlier. The Gujarat High Court

took a somewhat contrary view, by not interfering and directing

defreezing, observing that even if the action of the investigating

agency at  the inception to seize may not be regular,  the Court

cannot be oblivious to the collection of substantial material by the

investigating agency which justifies its action under Section 102 of

the  Code.  Further  when the  investigation  had  progressed to  a

material point, de-freezing the bank accounts on the basis of such

arguments would paralyse the investigation which would not be in

the  interest  of  justice.   After  referring  to  the  factual  matrix  in

Teesta  Atul  Setalvad (Supra),  this  Court  observed  that  the

Investigating Officer was in possession of material pointing out to

the circumstances that had created suspicion of the commission

of  an  offence,  in  particular  the  one  under  investigation,  and

13 (2018) 2 SCC 372 Criminal Appeal arising out of

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therefore exercise of power under Section 102 of the Code would

be  in  law  legitimate  as  it  was  exercised  after  following  the

procedure  prescribed  in  sub-sections  (2)  and  (3)  of  the  same

provision.

20. Section  102  postulates  seizure  of  the  property.  Immovable

property cannot, in its strict sense, be seized, though documents

of title, etc. relating to immovable property can be seized, taken

into custody and produced.  Immovable property can be attached

and also locked/sealed. It could be argued that the word ‘seize’

would include such action of attachment and sealing.  Seizure of

immovable property in this sense and manner would in law require

dispossession  of  the  person  in  occupation/possession  of  the

immovable property, unless there are no claimants, which would

be rare. Language of Section 102 of the Code does not support

the  interpretation  that  the  police  officer  has  the  power  to

dispossess  a  person  in  occupation  and  take  possession  of  an

immovable property in order to seize it.   In the absence of the

Legislature conferring this express or implied power under Section

102 of the Code to the police officer, we would hesitate and not

hold that this power should be inferred and is implicit in the power

to  effect  seizure.  Equally  important,  for  the  purpose  of

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interpretation is the scope and object of Section 102 of the Code,

which is to help and assist investigation and to enable the police

officer to collect and collate evidence to be produced to prove the

charge complained of and set up in the charge sheet. The Section

is a part of the provisions concerning investigation undertaken by

the police officer. After the charge sheet is filed, the prosecution

leads and produces evidence to secure conviction. Section 102 is

not, per se, an enabling provision by which the police officer acts

to seize the property to do justice and to hand over the property to

a  person  whom the  police  officer  feels  is  the  rightful  and  true

owner.  This is clear from the objective behind Section 102, use of

the words in the Section and the scope and ambit of the power

conferred on the Criminal Court vide Sections 451 to 459 of the

Code. The expression ‘circumstances which create suspicion of

the commission of any offence’ in Section 102 does not refer to a

firm  opinion  or  an  adjudication/finding  by  a  police  officer  to

ascertain whether or not ‘any property’ is required to be seized.

The word ‘suspicion’ is a weaker and a broader expression than

‘reasonable  belief’  or  ‘satisfaction’.  The  police  officer  is  an

investigator and not an adjudicator or a decision maker. This is the

reason why the Ordinance was enacted to deal with attachment of

money and immovable properties in cases of scheduled offences. Criminal Appeal arising out of

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In  case and if  we allow the police  officer  to  ‘seize’ immovable

property on a mere ‘suspicion of the commission of any offence’, it

would  mean  and  imply  giving  a  drastic  and  extreme power  to

dispossess etc.  to  the police  officer  on a mere conjecture  and

surmise,  that  is,  on  suspicion,  which  has  hitherto  not  been

exercised.  We  have  hardly  come  across  any  case  where

immovable property was seized vide an attachment order that was

treated as a seizure order by police officer under Section 102 of

the  Code.  The  reason  is  obvious.   Disputes  relating  to  title,

possession, etc., of immovable property are civil disputes which

have to be decided and adjudicated in  Civil  Courts.   We must

discourage  and  stall  any  attempt  to  convert  civil  disputes  into

criminal  cases  to  put  pressure  on  the  other  side  (See  Binod

Kumar and Others v. State of Bihar and Another14).  Thus, it will

not be proper to hold that Section 102 of the Code empowers a

police officer to seize immovable property, land, plots, residential

houses, streets or similar properties. Given the nature of criminal

litigation,  such seizure of  an  immovable  property  by the  police

officer in the form of an attachment and dispossession would not

facilitate investigation to collect evidence/material to be produced

during inquiry and trial.  As far  as possession of  the immovable

14 (2014) 10 SCC 663 Criminal Appeal arising out of

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property is concerned, specific provisions in the form of Sections

145  and  146  of  the  Code  can  be  invoked  as  per  and  in

accordance with law.  Section 102 of the Code is not a general

provision which enables and authorises the police officer to seize

immovable property for being able to be produced in the Criminal

Court  during trial.  This,  however,  would  not  bar  or  prohibit  the

police officer from seizing documents/ papers of  title relating to

immovable property, as it is distinct and different from seizure of

immovable property. Disputes and matters relating to the physical

and legal possession and title of the property must be adjudicated

upon by a Civil Court.

21. In view of the aforesaid discussion, the Reference is answered by

holding that the power of a police officer under Section 102 of the

Code  to  seize  any  property,  which  may  be  found  under

circumstances  that  create  suspicion  of  the  commission  of  any

offence, would not include the power to attach, seize and seal an

immovable property.

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22. The Registry is directed to list the individual appeals for disposal

before the appropriate Bench.

..................................CJI. (RANJAN GOGOI)

......................................J. (DEEPAK GUPTA)  

......................................J. (SANJIV KHANNA)

NEW DELHI; SEPTEMBER 24, 2019.

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1481 OF 2019 (@ SLP (CRL.) NO.1513 of 2011)

NEVADA PROPERTIES PRIVATE LIMITED  THROUGH ITS DIRECTOR                                 …APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA AND ANR.        …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.1122 OF 2011

CRIMINAL APPEAL NOS.  1482­1485    OF 2019 (@ SLP(CRL.) NOS.891­894 OF 2011)

CRIMINAL APPEAL NO.   1486      OF 2019 (@ SLP(CRL.) NO.4360 OF 2011)

AND CRIMINAL APPEAL NO.    1487      OF 2019

(@ SLP(CRL.) NO.3958 OF 2013)

J U D G M E N T

Deepak Gupta, J.

1. I have gone through the judgment delivered by my brother,

Justice Sanjiv Khanna.   I agree with the finding in the said

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judgment. However, in view of the nature of the issue involved, I

intend to give a few additional reasons of my own.

2. Since  brother  Khanna  in his judgment  has  given elaborate

reasons to hold that in the context of Section 102 the words ‘any

property’ would mean only movable property, I am not repeating

the same for the sake of brevity.   

3. The main issue involved is what is the meaning to be given to

the word ‘property’ occurring in Section 102 of the Code of Criminal

Procedure which reads as follows:­

“Power  of  police  officer to  seize  certain  property. ­ (1)  Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under sub­section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and  where the property seized is such that it cannot  be  conveniently transported to the  Court,  or  where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same:

Provided that where the property seized under sub­section (1) is subject to speedy and natural decay and if the person entitled to the possession  of such  property is  unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.”

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Sub­section (1) of Section 102 empowers a police officer to seize

any  property  which  may  be alleged or suspected to  have been

stolen or which may be found under circumstances which create

suspicion  of the commission  of any offence.  On  behalf of the

appellant it is urged that the word ‘any property’ is of very wide

amplitude and will cover movable and immovable properties.  This

stand is also supported by the State of Maharashtra.  On the other

hand,  it is  contended by the respondents that  in the context  in

which the word ‘any property’ is used in the Section, it has to be

limited to movable property and cannot be extended to immovable

property.

4. At first blush, the arguments on behalf of the appellant seem

attractive because normally the words ‘any property’ would mean

property of any kind or description.   However, it is a well settled

principle of statutory interpretation that when construing the

words of a statute, they must be read in a manner in which they fit

into the section and in the context of  the purpose sought to be

achieved by that particular provision of law.   

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5. Sub­section  (1)  of  Section 102 empowers a police officer to

seize any property which may be alleged or suspected to have been

stolen. Theft can take place only of movable property and not of

immovable property.   In my view, the word ‘seized’ has been used

in the sense  of taking  actual physical custody  of the  property.

Sub­section 3 of Section 102 provides that where it is difficult to

conveniently transport the property to the court or there is

difficulty in securing proper accommodation for the custody of the

property, then the  property can  be  given to  any  person  on  his

executing a bond.  This per se indicates that the property must be

capable of production in court and also be capable of being kept

inside some accommodation.   This obviously cannot be done with

immovable property.

6. Section 102 has been  in  the statute book for more than a

century.   Section 102 corresponds to Section 550 of the Code of

Criminal Procedure,  1898.   For more than a century the courts

have read the words ‘any property’ to mean movable property151617

15

AIR 1960 AII 405 16

WP(C) No. 12275 of 2012, Judgment dated 26.07.2012 (Ker HC) 17

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and no decision to the contrary was brought to our notice.

Reliance is only placed on the judgment of this Court in  State of

Maharashtra  vs.   Tapas D. Neogy18.   In that case, the question

was totally different and this court only decided that a bank

account of an accused was property within the meaning of Section

102.   The Court did not go into the question of movable or

immovable  property  and, therefore, this judgment  would  not  be

applicable.

7. I would also  like to point out that  in the Code of Criminal

Procedure itself the Legislature has in various provisions

specifically  used the  words ‘movable’ and ‘immovable’ property.

Some of those have been dealt with by my learned brother. In this

regard reference may be made to Section 83 of the Cr.P.C. which

relates to seizure of the property of a proclaimed absconder.  Sub­

section 1 of Section 83 reads as follows:­

 “(1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:...”

18

(1999) 7 SCC 685 Criminal Appeal arising out of

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The Legislature in its wisdom uses the words “order the attachment

of any property, movable or immovable or both”.   This is in

contradistinction to the words ‘any property’ used in Section 102.

8. Chapter VIIA was introduced in Cr.P.C. vide Act 40 of 1993

w.e.f. 20th  July 1994.   This Chapter deals with reciprocal

arrangements for assistance in certain matters and procedure for

attachment and forfeiture of property.   Property has been defined

in Section 105A(d) as follows:­

“‘Property’ means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or used in the commission of an offence and includes property obtained through proceeds of crime.”

This would include property of all kinds, movable and immovable.

The Legislature  made it clear that  property  of  all  kinds  can be

attached and forfeited.

Section 105C (1) reads as follows:­

 “S.105C  (1)  Where a  Court in India  has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of Section 105D to 105J (both inclusive).”

   Reading all these provisions together,  it is clear that when any

court in India has reasonable grounds to believe that any property

has been obtained by any person directly or indirectly from the Criminal Appeal arising out of

SLP (Crl.) No. 1513 of 2011 and connected   matters Page 37 of 39

commission of an offence, the Court may make an order for

attachment or forfeiture of such property.

9. This Court is not concerned with the procedure to be followed

for attachment and forfeiture of the property but only the meaning

of the word ‘property’.  Thus, Section 105C empowers the court to

order forfeiture of  any property which  it  may  feel is  derived or

obtained directly or indirectly by the commission of an offence.   

10. If the argument of the appellant and the State of Maharashtra

is  accepted then there was no need for the  legislature  to  have

introduced Chapter VIIA.   It would also be pertinent to mention

that the power of attachment and forfeiture is given to courts and

not to police officer.  As pointed out in the judgment of my learned

brother, if a police officer is given the power to seize immovable

property it may lead to an absolutely chaotic situation.  To give an

example, if there is a physical fight between the landlord and the

tenant over the rented premises and if the version of the appellant

is to be accepted, the police official would be entitled to seize the

tenanted property.  This would make a mockery of rent laws.  To

give another example, if a person forges a will and thereby claims

property on the basis of the forged will, can the police officer be Criminal Appeal arising out of

SLP (Crl.) No. 1513 of 2011 and connected   matters Page 38 of 39

given the power to seize the entire property, both movable and

immovable, that may be mentioned in the will?  The answer has to

be in the negative.  Otherwise it would lead to an absurd situation

which could never have been envisaged by the Legislature.   The

power of seizure in  Section  102  has to  be limited to  movable

property.  

11. As far as the meaning of property in Section 452 of the

Cr.P.C. is concerned, that is not a question referred to the larger

Bench and therefore, I would refrain from saying anything about

that.   

12. In view of the above, I would answer the reference by holding

that the phrase ‘any property’ in Section 102 will only cover

moveable property and not immovable property.   

…………………………J. (Deepak Gupta)

New Delhi September 24, 2019

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